Supreme Court upholds surrogate mother agreements

MADISON, Wis. — Surrogacy agreements allowing for a woman to carry the child of another who is unable to get pregnant are valid contracts, the Wisconsin Supreme Court ruled Thursday, drawing praise from those who are working to make it easier for such deals to occur.

Wisconsin has no law governing surrogacy, or parentage, agreements, a fact noted by the Supreme Court in its unanimous opinion urging the Legislature to take action. In the meantime, the court ruled that the agreements are valid and able to be enforced, unless they are contrary to the best interests of the child.

However, the court also limited the scope of the agreements by saying they cannot also terminate parental rights of the surrogate.

"Surrogacy is currently a reality in our Wisconsin court system," Justice Annette Ziegler wrote, adding that legislation could help ensure that the courts and those involved in such agreements understand the expectations and limitations.

Richard Schoenbohm, an Appleton attorney who is a member of two national groups that advocate for the rights of parents in surrogacy agreements, hailed the decision, saying it will help remove uncertainty in the law.

"We weren't flying blind," he said. "We were able to find bits and pieces here and there, intentions in the law, logical extensions of the law, case law from other states where we thought we were doing the right thing. But until you get a decision like this, you never know for sure. It's good to have this decision."

Thursday's ruling came in a case that involved two lifelong friends who entered into a surrogacy agreement in 2009. Under their contract, Monica Schissel agreed to become pregnant and carry a child for David and Marcia Rosecky. She also agreed to give up her parental rights and visitation rights.

Marcia Rosecky was diagnosed with leukemia in 2004 and 2008, and as a result, she was unable to get pregnant. Schissel had repeatedly offered to carry a child for her friend, whom she had known since elementary school.

After entering into the agreement, Schissel became pregnant through artificial insemination. Shortly before Schissel gave birth on March 19, 2010, the two couples had a falling out and Schissel told the Roseckys that she no longer wanted to give up her parental rights or ability to have regular visits with the child, as the agreement required.

The Roseckys went to court, seeking enforcement of the agreement. A Columbia County Circuit Court judge determined that the agreement was not enforceable. The judge awarded David Rosecky custody of the child, but Schissel was given the right to regular visits, including overnight stays after the child turned 2.

Rosecky appealed, seeking to retain both custody and the ability to bar Schissel from having regular visits with the child, as the surrogacy agreement detailed.

The state appeals court sent the case to the state Supreme Court, noting that Wisconsin does not currently have a law that addresses the enforceability of a surrogacy agreement.

The high court determined that such agreements are valid, enforceable contracts.

In upholding the legality of the parentage agreement, the Supreme Court sent the case back to circuit court for a hearing on custody and placement of the child within the terms of the agreement.

It also determined that the provision requiring Schissel to terminate parental rights was not enforceable under current law. The court said, however, that provision could be removed without defeating the primary purpose of the agreement.

The number of surrogacy births nationwide has increased from 738 in 2004 to 1,400 in 2008, Schoenbohm said. State records show there were 30 such births in Wisconsin in 2011, he said.

Steve Hayes, the attorney who represented the Roseckys, said he worked on drafting a surrogacy bill in the 1990s but it went nowhere. He welcomed the court's call for the Legislature to take action, calling it a "very significant decision for Wisconsin."

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